Plessy is widely regarded as one of the worst decisions in U.S. Supreme Court history.[3] Despite this status, the decision itself has never been explicitly overruled.[4] However, a series of subsequent decisions, beginning with Brown v. Board of Education in 1954, have severely weakened it to the point that it is usually considered to have been de facto overruled.[1] In Brown, the Supreme Court ruled that Plessy's "separate but equal" doctrine was unconstitutional in the context of schools and educational facilities.

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In 1890, the state of Louisiana passed the Separate Car Act, which required separate accommodations for blacks and whites on railroads, including separate railway cars.[5] Concerned, a group of prominent black, creole, and white New Orleans residents formed the Comité des Citoyens (Committee of Citizens) dedicated to repeal the law or fight its effect.[6] They persuaded Homer Plessy, a man of mixed race, to participate in an orchestrated test case. Plessy was born a free man and was an "octoroon" (of seven-eighths European descent and one-eighth African descent). However, under Louisiana law, he was classified as black, and thus required to sit in the "colored" car.[7]

On June 7, 1892, Plessy bought a first-class ticket at the Press Street Depot and boarded a "whites only" car of the East Louisiana Railroad in New Orleans, Louisiana, bound for Covington, Louisiana.[8] The railroad company, which had opposed the law on the grounds that it would require the purchase of more railcars, had been previously informed of Plessy's racial lineage, and the intent to challenge the law.[9] Additionally, the committee hired a private detective with arrest powers to detain Plessy, to ensure that he would be charged for violating the Separate Car Act, as opposed to a vagrancy or some other offense.[9] After Plessy took a seat in the whites-only railway car, he was asked to vacate it, and sit instead in the blacks-only car. Plessy refused and was arrested immediately by the detective.[10] As planned, the train was stopped, and Plessy was taken off the train at Press and Royal streets.[9] Plessy was remanded for trial in Orleans Parish.[11]

Marker placed at Press and Royal Streets in New Orleans on February 12, 2009, commemorating the arrest of Homer Plessy on June 7, 1892, for violating the Louisiana 1890 Separate Car Act

In his case, Homer Adolph Plessy v. The State of Louisiana, Plessy's lawyers argued that the state law which required East Louisiana Railroad to segregate trains had denied him his rights under the Thirteenth and Fourteenth amendments of the United States Constitution,[12] which provided for equal treatment under the law. However, the judge presiding over his case, John Howard Ferguson, ruled that Louisiana had the right to regulate railroad companies while they operated within state boundaries. Plessy was convicted and sentenced to pay a $25 fine. Plessy immediately sought a writ of prohibition.[13]

The Committee of Citizens took Plessy's appeal to the Supreme Court of Louisiana, where he again found an unreceptive ear, as the state Supreme Court upheld Judge Ferguson's ruling.[9]

In speaking for the court's decision that Ferguson's judgment did not violate the 14th Amendment, Louisiana Supreme Court Justice Charles Fenner cited precedents from two Northern states commonly associated with abolitionism. The Massachusetts Supreme Court had ruled as early as 1849 that segregated schools were constitutional. In answering the charge that segregation perpetuated race prejudice, the Massachusetts court stated: "This prejudice, if it exists, is not created by law and cannot be changed by law." Similarly, in commenting on a Pennsylvania law mandating separate railcars for different races the Pennsylvania Supreme Court stated: "To assert separateness is not to declare inferiority ... It is simply to say that following the order of Divine Providence, human authority ought not to compel these widely separated races to intermix."[14][15] Undaunted, the Committee appealed to the United States Supreme Court in 1896.[12] Two legal briefs were submitted on Plessy's behalf. One was signed by Albion W. Tourgée and James C. Walker and the other by Samuel F. Phillips and his legal partner F. D. McKenney. Oral arguments were held before the Supreme Court on April 13, 1896. Tourgée and Phillips appeared in the courtroom to speak on behalf of Plessy.[11]

Tourgée built his case upon violation of Plessy's rights under the Thirteenth Amendment, prohibiting slavery, and the Fourteenth Amendment, which guarantees the same rights to all citizens of the United States, and the equal protection of those rights, against the deprivation of life, liberty, or property without due process of law. Tourgée argued that the reputation of being a black man was "property", which, by the law, implied the inferiority of African Americans as compared to whites.[16]

Justice Edward Douglass White of Louisiana was one of the majority; the other six who voted in the seven-to-one majority decision were from states that sided with the Union during the Civil War.[18]

In the seven-to-one decision handed down on May 18, 1896 (Justice David Josiah Brewer did not participate because of the recent death of his daughter),[19] the Court rejected Plessy's arguments based on the Fourteenth Amendment, seeing no way in which the Louisiana statute violated it.[9] In addition, the decision rejected the view that the Louisiana law implied any inferiority of blacks, in violation of the Fourteenth Amendment. Instead, it contended that the law separated the two races as a matter of public policy.[20]

When summarizing, Justice Brown declared, "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."[21] Justice Brown also cited a Boston case upholding segregated schools.[22]

While the Court did not find a difference in quality between the whites-only and blacks-only railway cars, this was manifestly untrue in the case of most other separate facilities, such as public toilets, cafés, and public schools, where the facilities designated for blacks were consistently of lesser quality than those for whites.[23]

Justice John Marshall Harlan dissented, and predicted the court's decision would become as infamous as Dred Scott v. Sandford (1857). Justice Harlan was from Kentucky, which was a border state during the Civil War. Harlan said, in part:

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

Plessy legitimized the state laws establishing racial segregation in the South and provided an impetus for further segregation laws. It also legitimized laws in the North requiring racial segregation as in the Boston school segregation case noted by Justice Brown in his majority opinion.[24] Legislative achievements won during the Reconstruction Era were erased through means of the "separate but equal" doctrine.[25] The doctrine had been strengthened also by an 1875 Supreme Court decision that limited the federal government's ability to intervene in state affairs, guaranteeing to Congress only the power "to restrain states from acts of racial discrimination and segregation".[26] The ruling basically granted states legislative immunity when dealing with questions of race, guaranteeing the states' right to implement racially separate institutions, requiring them only to be "equal".[27]

1904 caricature of "White" and "Jim Crow" rail cars by John T. McCutcheon. Despite Jim Crow's legal pretense that the races be "separate but equal" under the law, non-whites were given inferior facilities and treatment.[28]

The prospect of greater state influence in matters of race worried numerous advocates of civil equality, including Supreme Court Justice John Harlan, who wrote in his dissent of the Plessy decision, "we shall enter upon an era of constitutional law, when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of the master."[26] Harlan's concerns about the encroachment on the 14th Amendment would prove well-founded; states proceeded to institute segregation-based laws that became known as the Jim Crow system.[29] In addition, from 1890 to 1908, Southern states passed new or amended constitutions including provisions that effectively disfranchised blacks and thousands of poor whites.

Some commentators, such as Gabriel J. Chin[30] and Eric Maltz,[31] have viewed Harlan's Plessy dissent in a more critical light, and suggested it be viewed in context with his other decisions.[32] Maltz has argued that "modern commentators have often overstated Harlan's distaste for race-based classifications," pointing to other aspects of decisions in which Harlan was involved.[33] Both point to a passage of Harlan's Plessy dissent as particularly troubling:[34][35] "There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union... and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race".[21]

New Orleans historian Keith Weldon Medley, author of We As Freemen: Plessy v. Ferguson, The Fight Against Legal Segregation, said the words in Justice Harlan's "Great Dissent" were taken from papers filed with the court by "The Citizen's Committee".[36]

The effect of the Plessy ruling was immediate; there were already significant differences in funding for the segregated school system, which continued into the 20th century; states consistently underfunded black schools, providing them with substandard buildings, textbooks, and supplies. States which had successfully integrated elements of their society abruptly adopted oppressive legislation that erased reconstruction era efforts.[37] The principles of Plessy v. Ferguson were affirmed in Lum v. Rice (1927), which upheld the right of a Mississippi public school for white children to exclude a Chinese American girl. Despite the laws enforcing compulsory education, and the lack of public schools for Chinese children in Lum's area, the Supreme Court ruled that she had the choice to attend a private school.[38] Jim Crow laws and practices spread northward in response to a second wave of African-American migration from the South to northern and midwestern cities. Some established de jure segregated educational facilities, separate public institutions such as hotels and restaurants, separate beaches among other public facilities, and restrictions on interracial marriage, but in other cases segregation in the North was related to unstated practices and operated on a de facto basis, although not by law, among numerous other facets of daily life.[37]

The separate facilities and institutions accorded to the African-American community were consistently inferior[39] to those provided to the White community. This contradicted the vague declaration of "separate but equal" institutions issued after the Plessy decision.[40]

From 1890 to 1908, state legislatures in the South disfranchised most blacks and many poor whites through rejecting them for voter registration and voting: making voter registration more difficult by providing more detailed records, such as proof of land ownership or literacy tests administered by white staff at poll stations. African-American community leaders, who had achieved brief political success during the Reconstruction era and even into the 1880s, lost gains made when their voters were excluded from the political system. Historian Rogers Smith noted on the subject that "lawmakers frequently admitted, indeed boasted, that such measures as complex registration rules, literacy and property tests, poll taxes, white primaries, and grandfather clauses were designed to produce an electorate confined to a white race that declared itself supreme", notably rejecting the 14th and 15th Amendments to the American Constitution.[41]

In the case of Brown v. Board of Education (1954), the US Supreme Court ruled that segregation in public education was unconstitutional.[42]Plessy v. Ferguson was never overturned by the Supreme Court.[43] But, the Civil Rights Act of 1964 prohibited legal segregation and the Voting Rights Act of 1965 provided for federal oversight and enforcement of voter registration voting.

In 2009 Keith Plessy and Phoebe Ferguson, descendants of participants on both sides of the 1896 Supreme Court case, announced establishing the Plessy and Ferguson Foundation for Education and Reconciliation. The foundation will work to create new ways to teach the history of civil rights through film, art, and public programs designed to create understanding of this historic case and its effect on the American conscience.[44]

Historians gathered with the Plessy and Ferguson families and a member of the Louisiana Supreme Court in New Orleans on February 12, 2009, to unveil a historical marker to memorialize the case.[9] "It is no longer Plessy v Ferguson. It is Plessy and Ferguson", said Keith Plessy in a radio interview.[45] The marker was placed on the corner of Press and Royal Streets, near the location of the former railway station where Plessy had boarded his train.[45]

^ abEpps, Henry (2012). A Concise Chronicle History of the African-American people Experience in America: From Slavery to the White House. CreateSpace Independent Publishing Platform. p. 242. ISBN978-1478157250.

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